Despite Indira’s precedent, Muslim convert mum and converts’ registrar file bid to challenge Court of Appeal’s decision quashing her unilateral conversion of kids

·7-min read
A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa
A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa

KUALA LUMPUR, Nov 29 — Following the Court of Appeal’s decision last month that it was correct to cancel the unilateral conversion of two young children to Islam by a Buddhist-turned-Muslim mother, applications to appeal the decision have now been filed at the Federal Court by both the mother and the Federal Territories Registrar of Muslim Converts.

This court case involves a couple — who were both initially Buddhists and who were living in Selangor with their two children born from a civil marriage. The Buddhist father and the Muslim convert mother have since divorced in April 2018. All four individuals cannot be named, due to a court order.

The current case was sparked off after the mother converted to Islam in December 2015 and secretly converted to Islam the two children — aged eight and three then — in Kuala Lumpur in May 2016 without informing the father and without the father’s consent.

On June 14, 2016, the father filed his court challenge in the High Court over the unilateral religious conversion of the two children, or in other words the conversion of their religious status involving the consent of one parent only instead of both parents.

The High Court in October 2018 had cited the need to follow a Federal Court precedent (where the Federal Court in January 2018 decided in M. Indira Gandhi’s case that both parents’ consent are needed for a child from a civil marriage to be converted to) Islam, and granted two orders sought by the Buddhist father.

The two High Court orders in 2018 were to quash the two children’s religious conversion and to quash the decision of Federal Territories Islamic Religious Department (Jawi) director-general and the Federal Territories Registrar of Muslim Converts to issue the children’s May 2016 certificates of conversion to Islam, and to compel both the two Federal Territories authorities to cancel the registration of the two children as Muslim converts in their records or the Muslim converts’ register.

The Court of Appeal on October 27, 2021 unanimously dismissed the two separate appeals by both the Muslim convert mother and the Federal Territories Registrar of Muslim Converts, ruling that the High Court was correct in its decision.

With both the High Court and Court of Appeal having ruled in the father’s favour to quash the conversion of the children’s religion without both parents’ consent, the mother and the Federal Territories Registrar of Muslim Converts have now brought the case to the Federal Court.

Appealing again, this time at the Federal Court

The Muslim convert mother’s lawyer Rohani Ibrahim confirmed to Malay Mail that her client’s application for leave to appeal was filed at the Federal Court on November 24.

Rohani today said the relevant court papers have been served on the attorney-general and the Buddhist father last Friday (November 26).

Arham Rahimy Hariri, another lawyer representing the Muslim convert mother, also confirmed to Malay Mail the list of three questions of law that his client is seeking to have the Federal Court hear.

The three questions of law are in the mother’s bid for appeal are:

  1. “Whether Article 12(4) of the Federal Constitution has been erroneously relied upon/or applied in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 1 MLJ 545?”

  2. “If the answer to Question 1 is affirmative, whether the legal position enunciated in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 1 MLJ 545 which requires both parents of a child of a civil marriage to consent (if both are still surviving) before a certificate of conversion to Islam can be issued in respect of that child is no longer effective in law?”

  3. “Whether the High Court and Court of Appeal are not strictly bound by the doctrine of stare decisis in the interpretation of the Federal Constitution in light of Dato’ Menteri Othman Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 when there is a failure in a Federal Court decision to give effect to the relevant provision of the Federal Constitution?”

In other words, the Muslim convert mother will be seeking the Federal Court’s leave or nod for the appeal to be heard, with her three questions revolving around the Federal Court’s January 2018 decision in Hindu mother M. Indira Gandhi’s similar court challenge involving the unilateral religious conversion of her three children to Islam by her Muslim convert ex-husband.

The Muslim convert mother in this case wants to ask the Federal Court to hear and decide if the Federal Court’s 2018 decision in Indira’s case was correct and still having legal effect, and whether the High Court and Court of Appeal does not need to be bound by precedent in interpreting the Federal Constitution.

Asking for case to be reheard

Separately, the Federal Territories Registrar of Muslim Converts’ lawyer Zulkifli Che Yong confirmed to Malay Mail that his client had filed its application for leave to appeal on November 25.

In the Federal Territories Registrar of Muslim Converts’ application to the Federal Court, it is asking for the Federal Court to either allow its application for leave to appeal, or alternatively for the Court of Appeal’s decision to be struck out and for the matter to be reheard at the Court of Appeal or to be heard by the Federal Court on its merits.

Claiming that the Court of Appeal had erred in dismissing its appeal, the Federal Territories Registrar of Muslim Converts suggested that an appeal to the Federal Court would involve the determination of six questions of law, but also said the final list of questions would be subject to the grounds of judgment to be provided by the Court of Appeal.

The tentative list of six legal questions sighted by Malay Mail include questions that touch on whether the legal principle that the consent of both parents was required before conversion certificates can be issued must yield or give way in cases where a child expresses his or her own religious convictions, and whether the High Court’s 1986 decision in the case of Susie Teoh still applies when a child decides to convert.

Other questions include whether the administrative law principle that an applicant must exhaust administrative remedies is irrelevant where there is an allegation of “nullity” in a decision-making process, and whether mandamus can be ordered in cases of issuance of conversion certificates when the decision maker has no statutory powers to do so.

The remaining two questions by the Federal Territories Registrar of Muslim converts are whether the legal principle that the paramount consideration should be the best interest of the child can be displaced by the parental right to object to a conversion on jurisdictional grounds, and whether parties must exhaust divorce proceedings before instituting judicial review proceedings.

When contacted, the Buddhist father’s lawyer Honey Tan confirmed to Malay Mail today that both the mother and the Federal Territories Registrar of Muslim Converts had filed two separate bids to appeal at the Federal Court.

“We have been served with their motions for leave to appeal,” she said.

“Pendaftar Muallaf is seeking for leave to appeal or in the alternative, to strike out the decision of Court of Appeal and for a re-hearing of that appeal,” she added when explaining the Federal Territories Registrar of Muslim Converts’ application to the Federal Court.

The application for leave to appeal by both the mother and the Federal Territories Registrar of Muslim Converts would typically go through case management first before hearing dates are fixed.

Separately, the two children — now aged 13 and nine — are under the father’s sole guardianship and custody, based on a final court decision in January 2020.

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